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• Board Meeting Date: 3/18/2008
• Description: ISF Section - Injury with Mitigation - Case No. 3-99CW34 - Application of Charles Nearburg
• Board Meetings - Doc Type: Memo

Creek Channel structure to reduce the potential to spread whirling disease, the CDOW staff's
preliminary recommendation is that the CWCB approve the proposed injury with mitigation
pretrial resolution, pending consultation with CDOW staff in Alamosa. The CDOW staff's
analysis and recommendation is attached to this memo as Exhibit 1.
Terms and Conditions
Staff, the Attorney General's Office and Charles Nearburg have discussed proposed terms and
conditions related to the injury with mitigation proposal and have agreed upon a proposed
stipulation, which is attached to this memo as Exhibit 2. Mr. Nearburg will agree to include the
following terms and conditions in a stipulation with the CWCB and the decree in this case:
1. Channel No. 1. The reach of Trout Creek affected by diversions into the "Trout Creek
Fishery Channel No. 1" is located above the reach of the prior restoration and habitat work
performed by Mr. Nearburg. This reach of Trout Creek is currently unstable, eroding, braided
and substantially over-widened (with the current channel width being approximately 120 feet to
as much as 200 feet wide during bankfull flow). Therefore, Mr. Nearburg agrees not to divert
water into the ``Trout Creek Fishery Channel No. 1"until additional mitigation measures are in
place. Specifically, Mr. Nearburg will construct a minimum of three (3) additional pool habitat
structures on Trout Creek, the upper-most such structure to be located within 200 feet of the
point of diversion for the Trout Creek Fishery Channel No. 1, and the remaining structures to be
constructed above the point of return to Trout Creek for the Trout Creek Fishery Channel No. 1.
Such structures shall be similar in nature to the habitat structures previously constructed on Trout
Creek by Mr. Nearburg for stream restoration and habitat purposes, and shall generally be
designed to consolidate the braided channels into a single thread, decrease the bankfull channel
width/depth ratio, stabilize the banks, and include boulder structures for stabilization and pool
creation.
2. Maintenance. Mr. Nearburg will commit to maintain the structures and improvements in
Trout Creek that provide the mitigation benefits, and acknowledge that any injurious diversions
to the new structures would cease in the event the mitigation structures and improvements in
Trout Creek are not maintained.
3. Inspection access. Mr. Nearburg will allow access for CWCB and DOW staff to inspect
the mitigation structures, subject to reasonable limits and provisions for advance notice.
4. Retained jurisdiction. Mr. Nearburg will include in any final decree a retained
jurisdiction provision allowing the water court to enforce the provisions of the injury with
mitigation stipulation as a water matter.
5. Measuring devices. In order to be able to divert water from Trout Creek in accordance
with the injury with mitigation proposal described herein, Mr. Nearburg shall install a gage, with
continuous recorder, in Trout Creek (the "Trout Creek Gage") immediately above the point of
diversion for the "Rankin Inlet," and to calibrate, maintain and replace the gage as may be
reasonably required to administer the terms of the stipulation. Alternately, if location of the Trout
Creek Gage above the Rankin Reser~~oir Headgate is not feasible, then the Trout Creek Gage
may be located at such other location on Trout Creek to be determined by Mr. Nearburg and
subject to the reasonable approval of the CWCB staff. Further, Mr. Nearburg agrees to install
such measuring devices on the Trout Creek Structures as may be reasonably required by the
Division Engineer to administer the decree.
6. Whirling disease BMPs. Mr. Nearburg agrees to confer with the DOW concerning best
management practices for the Trout Creek Fishery Channel Nos. 1-5 structures to reduce the